I have carefully studied all circumstances of the legal action of Plaintiff [name keeps in secret] and Defendant [name keeps in secret]. At issue before me is whether equitable distribution was waived as part of the Russian divorce.
2. The Plaintiff petitioned for a divorce on August 31, 2016.
3. Divorce was granted on consent of parties. According to the court file, the Defendant provided to the court his written consent for divorce twice. His first consent was signed and notarized in New York, which said: “I am asking to consider the divorce case between me and Plaintiff. in my absence, regardless of the date of hearing. I agree with the divorce”. The second consent was sent electronically from Defendant to the Court and said: “I was fully informed about the court session on [gate keeps in secret]. I ask that the court accept the divorce petition for consideration in my absence and I consent to the relief sought in plaintiff's claim”. The judge in divorce judgement also reflected that the parties reached a mutual consent to divorce.
DIVISION OF MARITAL PROPERTY
4. The Plaintiff filed for a divorce before a Peace Justice. In Russia, a husband and wife can be divorced by a Peace Justice of the lower court, or by a Municipal Court. The Peace Justice is empowered to hear property disputes, or financial disputes in divorce cases, unless the property/finances cost doesn’t exceed 50,000 rubles (will be less than $800 USD). They can issue simple divorce judgments and such-like orders. Municipal Justices are Justices of the higher level courts in Russia and are empowered to hear complex disputes.
5. Since under the Russian Law (Article 38 part 1) a divorce can be bifurcated and equitable distribution can be pursued before, during, and after a divorce, many couples opt for a quicker and simpler procedure and get divorced by a Peace Justice. They can separately institute a proceeding before the Municipal Court. According to Art. 38 part 7 of the Russian Family Code, claims for dividing the marital property by the spouses, who are divorced, a three-year term of legal limitation shall be applied.
6. In this particular case, the Plaintiff may commence a property division/equitable distribution action before the Municipal Court, however, she would not be able to seek equitable distribution of any property that is not located in Russia (pursuant to Art. 30 of Russian Civil Procedural Code. Since marital property is located in the United States, the Plaintiff would not be able to obtain any relief in Russia against her husband, who is not even subject to jurisdiction in Russia, and Russia has no information about his assets in the United States. Since there is no treaty between US and Russia, Russia would not seek or pursue any discovery into his assets in the US.
7. Defendant questions the following phrases sounding in the English translation as follows: “Any property-related claims were not filed” and “The court identified that neither of the spouses filed a claim to divide the marital property”.
8. The above phrases mean that the divorce could be considered and granted by the Peace Judge as opposed to the Municipal Court. If the parties filed claims seeking division of marital property, then the Peace Judge would not be able to grant them a divorce but would be obligated to refer the matter to the Municipal Court.
9. When equitable distribution and a divorce are part of the same action/proceeding, the matter gets referred to the Municipal court. The lower court – Peace Justice of Judicial district – has jurisdiction over a divorce without equitable distribution. If a divorce is sought as part of equitable distribution, it cannot go to the Peace Justice of Judicial district. The phrase, therefore, is only a jurisdictional phrase.
10. In our case, the divorce was granted by Peace Justice, who does not have the power to determine division of property issues under Article 23 part 1 subpart 3 of the Russian Civil Procedural Code.
11. Therefore, these phrases mean that the divorce was bifurcated and separated from the division of property, which is the common procedure in the Russian courts.
12. I have reviewed the divorce file. The division of property was not litigated in Russia and no agreement was reached regarding division of their property in the United States.
13. The Judicial Board for Civil Cases of Russian Supreme Court in its Ruling No. 41-KG16-17 dated on May 17, 2016 confirmed that, in accordance with Article 38 part 1 of Russian Family Code, the equitable distribution of the spousal’s property can be made during the marriage or after divorce at the request of any of the spouses, and the fact that the divorce was issued does not mean that the parties waived their right to divide marital property.
14. Based on the foregoing, the plaintiff's right to apply to a court with separate action for equitable distribution of spousal property is absolute. And only the court at the location of this property has jurisdiction over this legal issue.
15. According to the Article 3 part 2 of Russian Civil Procedural Code, the waiver of the right to proceed, is void. Equitable distribution requires an agreement or a decision from the court. Alternatively, at least three years must pass to preclude a party from seeking equitable distribution.
16. If the Plaintiff applied in Russia for equitable distribution at this time, the Court would not consider a dispute over property that is located in the United States, because it will be separate action from divorce.
17. These phrases do not indicate that the parties waived equitable distribution of marital property.
18. Equitable distribution can be sought pursuant to the Russian Family Code, Articles 24 part 2 and 38 part 1, separately from the divorce action, before, as part of, or after the divorce.
19. Spouses who are already divorced may seek equitable distribution for up to three years following their divorce (See Article 38 part 7 of the Russian Family Code).
20. Child support can be reviewed in Russia while the children reside there, but generally it would be a percentage of father's income. Russia is unable to determine father's income. Therefore, there would be no way to enforce the agreement.
21. It is also important that the parties and parties’ kids are American citizens. The children are temporarily in Russia and mother will bring them back as soon as she resolves legal issues with Defendant. In the light of these circumstances, the Supreme Court State of New York County of Kings is the only competent court to consider this case and take under control the execution of court order.